MICHEAL L. MCCLENDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Micheal McClendon appealed the denial of his motion for post-conviction relief, claiming his trial counsel was ineffective for failing to challenge a presentence investigation report that allegedly misclassified a 1986 conviction as a felony when it was actually a misdemeanor, thereby affecting his habitual offender sentencing. The court reversed and remanded the ineffective assistance of counsel claim for further consideration while affirming the denial of other grounds.
The court held that if McClendon's assertion is true, he has a viable ineffective assistance of counsel claim because he would have been prejudiced by counsel's failure to show that he did not meet the criteria for habitual offender sentencing. The trial court must either attach record portions that conclusively refute McClendon's allegations or conduct an evidentiary hearing on the issue.
[1] A defendant may have a viable ineffective assistance of counsel claim if counsel fails to present evidence demonstrating the defendant does not meet the criteria for habi…
[2] A trial court must attach portions of the record that conclusively refute a defendant's post-conviction allegations or conduct an evidentiary hearing if the record does n…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If McClendon's assertion is true, he has a viable ineffective assistance of counsel claim because he has been prejudiced by his counsel's failure to show the court that he did not meet the criteria for being sentenced as a habitual felony offender.”
Establishes the court's finding that McClendon stated a viable ineffective assistance claim based on alleged prejudice from counsel's failure to challenge his sentencing classification.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcClendon was sentenced as a habitual felony offender based on two prior felonies, with the instant felony committed within five years of the last pri…
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PER CURIAM.
Micheál McClendon appeals an order denying his motion for post-conviction relief. One of the grounds McClendon asserts in the motion is that his trial, counsel was ineffective in that he failed to present evidence of McClendon’s prior record that would have shown that he did not meet the criteria for habitual offender sentencing. McClendon alleges that the court relied on a 1986 conviction that the presentence investigation report showed to be a felony to sentence him as a habitual felony offender, but that the report was erroneous in that the 1986 conviction was actually a misdemeanor. He states that the transcript of the plea hearing will substantiate his claim and that he informed his counsel that the presentence investigation report was erroneous, but that his counsel failed to object to its accuracy and supplement the record with a transcript of the plea hearing. In the order denying the motion, the trial court merely stated that McClendon was properly sentenced as a habitual felony offender because he had previously been convicted of 2 felonies and the instant felony was committed within 5 years of the date of conviction of the last prior felony. The court did not attach copies of any portions of the record to the order. If McClendon’s assertion is true, he has a viable ineffective assistance of counsel claim because he has been prejudiced by his counsel’s failure to show the court that he did not meet the criteria for being sentenced as a habitual felony offender. Because the trial court failed to attach to the order portions of the record that conclusively refute this claim, we reverse and remand with directions to reconsider the issue and either attach those portions of the record that conclusively refute McClendon’s allegations or, if the record does not conclusively refute those allegations, conduct an evidentiary hearing on this issue. Van Meter v. State, 527 So. 2d 306 (Fla. 1st DCA1988).
We affirm the trial court’s denial of the remaining grounds as such grounds are legally insufficient to support a claim for post-conviction relief.
AFFIRMED in part, REVERSED in part, and REMANDED.
ZEHMER, WOLF and KAHN, JJ., concur.
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William v. Jones, 606 So. 2d 709 (Fla. 1st DCA 1992)…the time of Eutsey's sentence only one prior felony conviction was required for habitual felony offender sentencing). In our experience this is not an uncommon means for the state to prove the predicate felony convictions. E.g., McClendon v. State, 603 So. 2d 607 (Fla. 1st DCA1992). . The supreme court reaffirmed Walker a year later in State v. Whitfield, 487 So. 2d 1045, 1046 (Fla.1986), stating that without the requisite statutory findings the sentence is illegal. . The dissent also relies on Myers v. St…
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Rogers v. State, 765 So. 2d 269 (Fla. 1st DCA 2000)…iteria constitutes fundamental error. See Maddox v. State, 760 So. 2d 89 (Fla.2000). This court has held that the failure to present evidence that would refute an improper HFO designation is ineffective assistance of counsel. See McClendon v. State, 603 So. 2d 607 (Fla. 1st DCA 1992). Appellant alleged that he did not qualify as an HFO under the statute, and the trial court’s attachments do not refute this allegation conclusively. Accordingly, we REVERSE the denial of Appellant’s claim as to the imposition o…
Authorities Cited
- Van Meter v. State, 527 So. 2d 306 (Fla. 1st DCA 1988)